Summary Summary

Submitted for your approval – another set of notable summary orders.

In United States v. Davidson, No. 06-4729-cr (2d Cir. October 3, 2008), the court ducked an interesting issue. Davidson was convicted of a drug offense and a related § 924(c) offense and the district judge fined him $300 on each count. However, 18 U.S.C. § 924(c) authorizes only imprisonment, the section oes not mention a fine. The circuit noted that the 924(c) fine was thus “arguably invalid.” But “rather than explore and adjudicate the issue,” it simply struck the fine on that count.

In United States v. Lutz, No. 07-5188-cr (2d Cir. October 3, 2008), the court held that the defendant was not entitled to a Regalado remand where the district judge clearly indicated that “Kimbrough” would not “make any difference to me at this point … I don’t think it would have an impact at all.”

United States v. Malenge, No. 07-2823-cr (2d Cir. September 29, 2008), deals with a host of important issues relating to the criminal prosecution of aliens seeking asylum in the United States. Malenge fled political violence in the Democratic Republic of the Congo. Hoping to join her husband, also a refugee, in Connecticut. She boarded an Amtrak train in Montreal and was arrested by immigration authorities when she tried to enter the United States with false documents. Without waiting for Malenge’s asylum claim to proceed, the Northern District USAO charged her with various false-document offenses. She unsuccessfully moved to dismiss the indictment in the district court.

On appeal, Malenge argued that her prosecution violated the United Nations Convention Relating to the Status of Refugees, which the United States is bound to comply with through a related U.N. Protocol. The court disagreed because that Protocol does not provide any judicially enforceable rights.

Worried that the prosecution would affect her right to seek asylum, Malenge also raised a due process claim. But the court found no evidence that the prosecution violated her procedural rights in the asylum proceeding, and noted that there is no legal basis for the appellate court to prevent her prosecution in order to protect her asylum claim.

Finally, she asked the court to order the USAO to await an asylum determination before proceeding against her, or any other refugee who enters the United States using false documents. The court held that it could not grant the request but found that it had “significant merit.” Deferring prosecution would, “assuming [Malenge] is correct that her burden for seeking asylum has increased, prevent a felony conviction from unnecessarily prejudicing [her] claim for asylum [and] allow the Department of Justice to exercise its prosecutorial discretion after a full evaluation of an asylum seeker’s credibility.”

The court expressed dissatisfaction with the NDNY’s “blanket policy of immediately prosecuting asylum seekers for their use of false documents,” calling it “troubling, to say the least.” Malenge could have entered the country legally with a credible asylum claim, thus her immediate prosecution “penalizes her for her ignorance in contradiction of our government’s police of providing safe haven to refugees,” and “appears to place” the NDNY USAO “at odds with the Executive Branch as a whole, which has committed [by treaty] … to avoid such penalties.”

The court concluded by indicating its “agree[ment]” with Malenge that her prosecution “is fundamentally inconsistent with the policies and obligations of the federal government with regard to the treatment of refugees” and with the district court’s “observation that Malenge’s use of false documents should not create a basis for denying her asylum application.”

Although the court was not reviewing the asylum claim itself, it noted that it would likely find an abuse of discretion if that claim were denied based on Malenge’s use of false documents as a means of fleeing persecution.